On October 22, the U.S. hosted a ceremony at the Department of Health and Human Services (DHHS) for the signing of the Geneva Consensus Declaration on Promoting Women’s Health and Strengthening the Family.[1]
The Declaration was prepared because COVID-19 prevented the signatories from meeting in Geneva, Switzerland for the 2020 World Health Assembly “to review progress made and challenges to uphold the right to the highest attainable standards of health for women; to promote women’s essential contribution to health, and strength of the family and of a successful and flourishing society; and to express the essential priority of protecting the right to life, committing to coordinated efforts in multilateral fora.”
The signatories, therefore:
“1. Reaffirm ‘all are equal before the law,’ and ‘human rights of women are an inalienable, integral, and indivisible part of all human rights and fundamental freedoms’;”
“2. Emphasize ‘the equal right of men and women to the enjoyment of all civil and political rights,’ as well as economic, social, and cultural rights; and the ‘equal rights, opportunities and access to resources and equal sharing of responsibilities for the family by men and women and a harmonious partnership between them are critical to their well-being and that of their families’ ; and that ‘women and girls must enjoy equal access to quality education, economic resources, and political participation as well as equal opportunities with men and boys for employment, leadership and decision-making at all levels;’”
“3. Reaffirm the inherent ‘dignity and worth of the human person,’ that ‘every human being has the inherent right to life,’ and the commitment ‘to enable women to go safely through pregnancy and childbirth and provide couples with the best chance of having a healthy infant;’”
“4. Emphasize that ‘in no case should abortion be promoted as a method of family planning’ and that ‘any measures or changes related to abortion within the health system can only be determined at the national or local level according to the national legislative process’; Reaffirm that ‘the child… needs special safeguards and care… before as well as after birth’ and ‘special measures of protection and assistance should be taken on behalf of all children,’ based on the principle of the best interest of the child;”
” 5. Reaffirm that ‘the family is the natural and fundamental group unit of society and is entitled to protection by society and the State’; that ‘motherhood and childhood are entitled to special care and assistance,’ that ‘women play a critical role in the family’ and women’s ‘contribution to the welfare of the family and to the development of society’;”
“6. Recognize that ‘universal health coverage is fundamental for achieving the Sustainable Development Goals related not only to health and well-being,’ with further recognition that ‘health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity’ that ‘the predominant focus of health-care systems on treating illness rather than maintaining optimal health also prevents a holistic approach’; and that there are ‘needs that exist at different stages in an individual’s lifespan, which together support optimal health across the life course, entailing the provision of the necessary information, skills, and care for achieving the best possible health outcomes and reaching full human potential; and”
“7. Reaffirm ‘the importance of national ownership and the primary role and responsibility of governments at all levels to determine their own path towards achieving universal health coverage, in accordance with national contexts and priorities’, preserving human dignity and all the rights and freedoms set forth in the Universal Declaration of Human Rights.”
Furthermore, the signatories ”hereby declare in mutual friendship and respect, our commitment to work together to:
Ensure the full enjoyment of all human rights and equal opportunity for women at all levels of political, economic, and public life;
Improve and secure access to health and development gains for women, including sexual and reproductive health, which must always promote optimal health, the highest attainable standard of health, without including abortion;
Reaffirm that there is no international right to abortion, nor any international obligation on the part of States to finance or facilitate abortion, consistent with the long-standing international consensus that each nation has the sovereign right to implement programs and activities consistent with their laws and policies;
Build our health system capacity and mobilize resources to implement health and development programs that address the needs of women and children in situations of vulnerability and advance universal health coverage;
Advance supportive public health policies for women and girls as well as families, including building our healthcare capacity and mobilizing resources within our own countries, bilaterally, and in multilateral fora;
Support the role of the family as foundational to society and as a source of health, support, and care; and
Engage across the UN system to realize these universal values, recognizing that individually we are strong, but together we are stronger.”
The co-sponsors and signatories of this Declaration were the U.S., Indonesia, Brazil, Egypt, Hungary and Uganda. The other 26 signatories included Poland, the Belarus (where security forces are currently trying to suppress a women-led protest movement), Saudi Arabia, Bahrain, the United Arab Emirates, Iraq, Sudan, South Sudan and Libya.
According to the Women, Peace and Security Index that was established by Georgetown University, most of the signatories are among the worst countries for women’s rights, and none of the top twenty countries on that index—except for the U.S. which ranked 19th—signed the declaration.
At the ceremony, Alex Azar, the Secretary of DHHS, said, “too many wealthy nations and international institutions put a myopic focus on a radical agenda that is offensive to many cultures and derails agreement on women’s health priorities. Today, we put down a clear marker: No longer can U.N. agencies reinterpret and misinterpret agreed-upon language without accountability. Member States set the policy for the U.N. to pursue. Not the other way around.”
Secretary of State Michael Pompeo added that this document aims to “protect women’s health, defends the unborn and reiterates the vital importance of the family as the foundation of society.” He also stressed, “There is no international right to abortion.”
The document does not directly address same-sex marriage, but its statement that the family is “the natural and fundamental group unit of society” has clear meaning for those signatories that restrict LGBT rights like Egypt.
As noted in prior posts, the final step for someone to become a naturalized U.S. citizen is to attend a ceremony in which the individual takes an oath of allegiance to the United States of America and officially is declared to be a U.S. citizen. This is after such an individual meets the requirements of U.S. law through submission of an application with various aspects of personal information and an interview for vetting that information.[1]
Such a ceremony took place on December 15, 2015, at Washington, D.C.’s Rotunda of the National Archives Museum, where the original Constitution, Declaration of Independence and Bill of Rights are permanently displayed. December 15 also was the 224th anniversary of the ratification of the Bill of Rights.
On this occasion President Barack Obama provided inspiring words to welcome 31 new U.S. citizens. Above are photographs of the President giving his speech and of some of the new citizens. Here is what Obama said.[2]
“To my fellow Americans, our newest citizens. You are men and women from more than 25 countries, from Brazil to Uganda, from Iraq to the Philippines. You may come from teeming cities or rural villages. You don’t look alike. You don’t worship the same way. But here, surrounded by the very documents whose values bind us together as one people, you’ve raised your hand and sworn a sacred oath. I’m proud to be among the first to greet you as “my fellow Americans.”
“What a remarkable journey all of you have made. And as of today, your story is forever woven into the larger story of this nation. . . . [Y]ou still have a demanding and rewarding task ahead of you — and that is the hard work of active citizenship. You have rights and you have responsibilities.”
“Just about every nation in the world, to some extent, admits immigrants. But there’s something unique about America. We don’t simply welcome new immigrants, we don’t simply welcome new arrivals — we are born of immigrants. That is who we are. Immigration is our origin story. And for more than two centuries, it’s remained at the core of our national character; it’s our oldest tradition. It’s who we are. It’s part of what makes us exceptional.”
“[U]nless your family is Native American, one of the first Americans, all of our families come from someplace else. The first refugees were the Pilgrims themselves — fleeing religious persecution, crossing the stormy Atlantic to reach a new world where they might live and pray freely. Eight signers of the Declaration of Independence were immigrants. And in those first decades after independence, English, German, and Scottish immigrants came over, huddled on creaky ships, seeking what Thomas Paine called ‘asylum for the persecuted lovers of civil and religious liberty.’”
“Down through the decades, Irish Catholics fleeing hunger, Italians fleeing poverty filled up our cities, rolled up their sleeves, built America. Chinese laborers jammed in steerage under the decks of steamships, making their way to California to build the Central Pacific Railroad that would transform the West — and our nation. Wave after wave of men, women, and children — from the Middle East and the Mediterranean, from Asia and Africa — poured into Ellis Island, or Angel Island, their trunks bursting with their most cherished possessions — maybe a photograph of the family they left behind, a family Bible, or a Torah, or a Koran. A bag in one hand, maybe a child in the other, standing for hours in long lines. New York and cities across America were transformed into a sort of global fashion show. You had Dutch lace caps and the North African fezzes, stodgy tweed suits and colorful Caribbean dresses.”
“And perhaps, like some of you, these new arrivals might have had some moments of doubt, wondering if they had made a mistake in leaving everything and everyone they ever knew behind. So life in America was not always easy. It wasn’t always easy for new immigrants. Certainly it wasn’t easy for those of African heritage who had not come here voluntarily, and yet in their own way were immigrants themselves. There was discrimination and hardship and poverty. But, like you, they no doubt found inspiration in all those who had come before them. And they were able to muster faith that, here in America, they might build a better life and give their children something more.”
“Just as so many have come here in search of a dream, others sought shelter from nightmares. Survivors of the Holocaust. Soviet Refuseniks. Refugees from Vietnam, Laos, Cambodia. Iraqis and Afghans fleeing war. Mexicans, Cubans, Iranians leaving behind deadly revolutions. Central American teenagers running from gang violence. The Lost Boys of Sudan escaping civil war. They’re people like Fulbert Florent Akoula from the Republic of Congo, who was granted asylum when his family was threatened by political violence. And today, Fulbert is here, a proud American.”
“We can never say it often or loudly enough: Immigrants and refugees revitalize and renew America. Immigrants like you are more likely to start your own business. Many of the Fortune 500 companies in this country were founded by immigrants or their children. Many of the tech startups in Silicon Valley have at least one immigrant founder.”
“Immigrants are the teachers who inspire our children, and they’re the doctors who keep us healthy. They’re the engineers who design our skylines, and the artists and the entertainers who touch our hearts. Immigrants are soldiers, sailors, airmen, Marines, Coast Guardsmen who protect us, often risking their lives for an America that isn’t even their own yet. As an Iraqi, Mohammed Ibrahim Al Naib was the target of death threats for working with American forces. He stood by his American comrades, and came to the U.S. as a refugee. And today, we stand by him. And we are proud to welcome Mohammed as a citizen of the country that he already helped to defend.”
“We celebrate this history, this heritage, as an immigrant nation. And we are strong enough to acknowledge, as painful as it may be, that we haven’t always lived up to our own ideals. We haven’t always lived up to these documents.”
From the start, Africans were brought here in chains against their will, and then toiled under the whip. They also built America. A century ago, New York City shops displayed those signs, “No Irish Need Apply.” Catholics were targeted, their loyalty questioned — so much so that as recently as the 1950s and ‘60s, when JFK . . . [ran for office], he had to convince people that his allegiance wasn’t primarily to the Pope.”
“Chinese immigrants faced persecution and vicious stereotypes, and were, for a time, even banned from entering America. During World War II, German and Italian residents were detained, and in one of the darkest chapters in our history, Japanese immigrants and even Japanese-American citizens were forced from their homes and imprisoned in camps. We succumbed to fear. We betrayed not only our fellow Americans, but our deepest values. We betrayed these documents. It’s happened before.”
“And the biggest irony of course is that those who betrayed these values were themselves the children of immigrants. How quickly we forget. One generation passes, two generation passes, and suddenly we don’t remember where we came from. And we suggest that somehow there is ‘us’ and there is ‘them,’ not remembering we used to be ‘them.’”
“On days like today, we need to resolve never to repeat mistakes like that again. We must resolve to always speak out against hatred and bigotry in all of its forms — whether taunts against the child of an immigrant farm worker or threats against a Muslim shopkeeper. We are Americans. Standing up for each other is what the values enshrined in the documents in this room compels us to do -– especially when it’s hard. Especially when it’s not convenient. That’s when it counts. That’s when it matters — not when things are easy, but when things are hard.”
“The truth is, being an American is hard. Being part of a democratic government is hard. Being a citizen is hard. It is a challenge. It’s supposed to be. There’s no respite from our ideals. All of us are called to live up to our expectations for ourselves — not just when it’s convenient, but when it’s inconvenient. When it’s tough. When we’re afraid. The tension throughout our history between welcoming or rejecting the stranger, it’s about more than just immigration. It’s about the meaning of America, what kind of country do we want to be. It’s about the capacity of each generation to honor the creed as old as our founding: “E Pluribus Unum” — that out of many, we are one.”
“Scripture tells us, ‘For we are strangers before you, and sojourners, as were all our fathers.’ In the Mexican immigrant today, we see the Catholic immigrant of a century ago. In the Syrian seeking refuge today, we should see the Jewish refugee of World War II. In these new Americans, we see our own American stories — our parents, our grandparents, our aunts, our uncles, our cousins who packed up what they could and scraped together what they had. And their paperwork wasn’t always in order. And they set out for a place that was more than just a piece of land, but an idea.”
“America: A place where we can be a part of something bigger. A place where we can contribute our talents and fulfill our ambitions and secure new opportunity for ourselves and for others. A place where we can retain pride in our heritage, but where we recognize that we have a common creed, a loyalty to these documents, a loyalty to our democracy; where we can criticize our government, but understand that we love it; where we agree to live together even when we don’t agree with each other; where we work through the democratic process, and not through violence or sectarianism to resolve disputes; where we live side by side as neighbors; and where our children know themselves to be a part of this nation, no longer strangers, but the bedrock of this nation, the essence of this nation.”
“More than 60 years ago, at a ceremony like this one, Senator John F. Kennedy said, ‘No form of government requires more of its citizens than does the American democracy.’ Our system of self-government depends on ordinary citizens doing the hard, frustrating but always essential work of citizenship — of being informed. Of understanding that the government isn’t some distant thing, but is you. Of speaking out when something is not right. Of helping fellow citizens when they need a hand. Of coming together to shape our country’s course.”
And that work gives purpose to every generation. It belongs to me. It belongs to the judge. It belongs to you. It belongs to you, all of us, as citizens. To follow our laws, yes, but also to engage with your communities and to speak up for what you believe in. And to vote — to not only exercise the rights that are now yours, but to stand up for the rights of others.
“Birtukan Gudeya is here [today] from Ethiopia. She said, ‘The joy of being an American is the joy of freedom and opportunity. We have been handed a work in progress, one that can evolve for the good of all Americans.’”
“That is what makes America great — not just the words on these founding documents, as precious and valuable as they are, but the progress that they’ve inspired. If you ever wonder whether America is big enough to hold multitudes, strong enough to withstand the forces of change, brave enough to live up to our ideals even in times of trial, then look to the generations of ordinary citizens who have proven again and again that we are worthy of that.”
“That’s our great inheritance — what ordinary people have done to build this country and make these words live. And it’s our generation’s task to follow their example in this journey — to keep building an America where no matter who we are or what we look like, or who we love or what we believe, we can make of our lives what we will.”
“You will not and should not forget your history and your past. That adds to the richness of American life. But you are now American. You’ve got obligations as citizens. And I’m absolutely confident you will meet them. You’ll set a good example for all of us, because you know how precious this thing is. It’s not something to take for granted. It’s something to cherish and to fight for.”
“Thank you. May God bless you. May God bless the United States of America.”
And I say, thank you, Mr. President, for a necessary and inspiring message to us all. It echoes some of the points recently made by Minneapolis clergy that were discussed in a recent post.
Since 2001 this small Choir has explored the vast landscape of sacred music from all over the world. It generally sings once a month at the 8:30 a.m. service in the Chapel and is directed by Barbara Prince, who serves in many capacities in the church. It includes members of the church’s regular choir and others regardless of age or experience. (I recently joined this Choir even though the last time I sang in a choir was nearly 60 years ago when I was a member of the Youth Choir at the First Methodist Church in Perry, Iowa.)
The Global Choir is one way that Westminster seeks to be in solidarity with her sisters and brothers around the world and to remind us in Minnesota that our Christian faith perspective is not the only one in the world. Another way is congregational and individual participation in our ongoing partnerships with churches and other organizations in Cuba, Cameroon and Palestine.
To illustrate this choral mission, here are the anthems from the Choir’s most recent appearance and from the forthcoming early worship service on February 16th.
On January 19th, the Global Choir sang Palestinian and Israeli anthems.
The Palestinian anthem, Truth Is Our Call, has the following lyrics:
“Truth is our call and justice our claim. The will of our God is our vanguard and aim; the God of us all, of mercy and love, of freedom and peace for all of humankind.
Refrain: We’ll strive and we’ll strive and we will not be still to lift all oppression with God’s help and will. We’ll raise high the banner of righteousness and truth, we’ll strive and we’ll strive and we will not be still.
We shall not give in to fear or to hate; we will speak the truth and we’ll strive to be just. With love we will stir the conscience of the world; with patience and faith we’ll save our home and land.”
Refrain.
Truth Is Our Call was composed by Rima Nasir Tarazi, a musician, an activist, a community leader and, above all, a humanist and a loving grandmother. After 1967, she started writing the lyrics for her compositions. Through those songs she documents the inhumane daily events taking place under the Israeli military occupation. She expresses the voice of Palestinian mothers, prisoners and children who all yearn for freedom, dignity and peace. Although Rima’s songs are about a dispossessed and suffering people, yet they are full of hope as they communicate the dreams and aspirations of the Palestinian people.
The Israeli anthem was Sim Shalom—Prayer for Peace. Here are its lyrics:
“Grant us peace Thy most precious gift, O Thou eternal source of peace. Bless our country, that it may be a stronghold of peace. May contentment reign within its borders, bonds of friendship throughout the world. Plant virtue in every soul and love for Thy name in every heart. Give us peace.”
Sim Shalom (Song of Peace) was composed by Max Janowski (1912–1991), a composer of Jewish liturgical music, a conductor, choir director, and voice teacher. Born in Berlin, in his early 20’s he became head of the piano department at a music academy in Tokyo, Japan, but emigrated to the U.S. in 1937 and served in the U.S. Navy during World War II. After the war he was the longtime music director at a synagogue in Hyde Park, near the University of Chicago.
Sim Shalom is dedicated to the U.S. African-American diplomat Ralph Bunche, who was awarded the 1950 Nobel Peace Prize for his work as the United Nations’ chief mediator in assisting Israel and its neighbors (Egypt, Lebanon, Jordan and Syria) in negotiating the 1949 Armistice Agreements that ended the 1948 Arab-Israeli War and established Armistice Demarcation Lines.
February 16, 2014
On February 16th in honor of U.S. black history month the Choir will sing an African-American spiritual and an anthem from Uganda.
The spiritual is “Who Will Be a Witness” with new words and music by Donald Moore, an Ohio-based composer, arranger, lyricist and author of over 800 sacred, secular, educational and pop choral works.[1] Its words are the following:
“Who will be a witness, O my Lord? Who will be a witness, O my Lord? Who’ll be there beside me? Who’ll be there to guide me? Who will be a witness, O my Lord? I’m goin’ to heaven, want to do it right. I’m goin’ to heaven, I’ll be dressed in white.
Who’ll be there to meet me? Who’ll be there to greet me? Who will be a witness, O my Lord? Don’t want to stumble, don’t want to fall. I’m goin’ to heaven when the roll is called. Heaven bells are ringin’. Saints are all a singin’. Who will be a witness, O my Lord? A witness, a witness, O my Lord. Who’ll be there beside me? Who’ll be there to guide me? Who’ll be there to meet me? Who’ll be there to greet me? Who will be a witness, O my Lord?”
The Ugandan anthem is “Come and Let Us Worship God,” which was composed by Cranmer Mugisha, a Bishop of the Church of Uganda, a “Jesus-loving, Bible-believing, Spirit-filled Anglican Church engaged in the mission of Jesus Christ in today’s world.” The anthem’s words are as follow:
“Come and let us worship God, turn to serve the living Lord, move from where we are misled, do as ancient prophets said.
Oh our living God, We, the creatures of your word, come to make our home in you, knowing that your word is true.
Let us hear our Maker’s voice, and let Christ inform each choice.
Sister women, brother men, let us turn to God again.
Oh our living God, We, the creatures of your word, come to make our home in you, knowing that your word is true.
[1] Moore also is the President and CEO of Moore Racing Enterprises LLC, which maintains a competitive midget race-car team, and a smooth-jazz/greatest-hits solo performer.
Today before a cheering crowd of 60,000 in a Nairobi stadium, Uhuru Kenyatta and William Ruto were inaugurated as the new president and deputy president of Kenya. In his inaugural speech Kenyatta made a veiled reference to the pending charges against him and other Kenyans in the International Criminal Court (ICC) when he said, ““Kenya will strive to uphold our international obligations” but that these obligations must be based on “mutual respect.”
Also in attendance was Uganda’s president, Yoweri Museveni, who told the crowd he applauded Kenyans for rejecting the “blackmail” of the ICC, which was steered by “arrogant actors” to “install leaders of their choice in Africa and eliminate those they don’t like.”
As discussed in a prior post, both Kenyatta and Ruto and another Kenyan (Joseph Arap Sang) are scheduled to go to trial in the next three months before the ICC in the Hague on charges of crimes against humanity in connection with violent deaths after the Kenyan election in 2007.
Now there are rumblings that suggest these three cases are collapsing not long after three other Kenyan cases had been terminated. [1]
The key case is Kenyatta’s. The Office of the Prosecutor (TOP) recently informed the Court that four of the 12 witnesses against Kenyatta have recanted their testimony because of security threats and fears of retaliation against their families.[2]
In response Kenyatta’s lawyers have asserted that the charges against their client were based on false evidence and have asked the ICC’s Trial Chamber to refer the case to the Pre-Trial Chamber for reconsideration of its January 2012 decision confirming the charges.
On April 5th the ICC Prosecutor issued a public statement deploring “the recent stream of sensationalist reports in the Kenyan media, on the level of witness cooperation [in these cases]. Witness protection remains one of our highest priorities. The Office will therefore not be drawn into any public speculation on the status of witnesses. The courage and integrity of witnesses are essential to the Court’s determination of the truth, which is at the heart of justice. It is in the interest of all concerned to allow justice to take its course.”
A long-time observer of Kenya has said that the Kenyan Supreme Court’s March 30th validation of the election of Kenyatta “secured Kenya’s place as a shining international symbol of impunity” and that the ICC “case against Kenyatta now seems doomed.” According to this observer, witness intimidation and bribery “will only escalate, and it’s hard to see any Kenyan being brave — or foolhardy — enough now to take the witness stand against a head of state.”
This observer even thought “the failure of the Kenyatta case may be the first chime of the death knell for the I.C.C.”
We will have to stay tuned to see what happens in these cases. For this supporter of the Court, the outlook is not bright.
[1] The Court’s Pre-Trial Chamber has refused to confirm charges against two other Kenyans (Henry Kiprono Kosgey and Mohammed Hussein Ali), and in March 2013 the Office of the Prosecutor withdrew the charges against another Kenyan (Francis Kirimi Muthaura) because of problems with prosecution witnesses, including alleged bribery. These cases also were discussed in the prior post.
[2] The same problem has emerged with at least one of the witnesses against the other two defendants (Ruto and Sang).
We just reviewed the status of the investigative situations and cases of the International Criminal Court (ICC) and other ICC developments. Now we look at developments in U.S.-ICC relations.[1]
U.N. Security Council. On October 17, 2012, the U.N. Security Council had a general discussion on the promotion and strengthening of the rule of law in the maintenance of international peace and security with emphasis on the role of the ICC.
Susan Rice
U.S. Ambassador to the U.N., Susan Rice, said at that meeting that “strengthening the global system of accountability for the worst atrocities remains an important priority for the [U.S.]. President Obama has emphasized that preventing mass atrocities and genocide is a core national security interest and core moral responsibility for our nation. We are committed to bringing pressure to bear against perpetrators of atrocities, ensuring accountability for crimes committed, and prioritizing the rule of law and transitional justice in our efforts to respond to conflict.”
Rice added that the U.S. “recognize[s] that the ICC can be an important tool for accountability. We have actively engaged with the ICC Prosecutor and Registrar to consider how we can support specific prosecutions already underway, and we’ve responded positively to informal requests for assistance. We will continue working with the ICC to identify practical ways to cooperate – particularly in areas such as information sharing and witness protection – on a case-by-case basis, as consistent with U.S. policy and law.”
Another important point for Rice was the need “to improve cooperation and communication between the Security Council and the Court. For example, the Council should monitor the developments in situations it refers to the Court, since the ICC may face dangers in conducting its work. However, we must also recognize that the ICC is an independent organization. This status raises concerns about proposals to cover its expenses with UN-assessed funding.” In addition, she said, the “interests of peace, security and international criminal justice are best served when the Security Council and the ICC operate within their own realms but work in ways that are mutually reinforcing. We should not accept the false choice between the interests of justice and the interests of peace.”
Assembly of States Parties. The U.S. continues to participate as an observer at meetings of the Court’s governing body, the Assembly of States Parties. At its November 2012 meeting, for example, major speeches were made by U.S. Ambassador-at-Large Stephen J. Rapp of the Department of State’s Office of Global Criminal Justice and Harold Koh, who then was U.S. Department of State Legal Advisor.
Stephen Rapp
Ambassador Rapp said the U.S. had “worked diligently to promote an end to impunity” and had been “supporting the work of the ICC in each of its current cases.” He then outlined the following priorities for the Court and its supporters:
“First, it is essential that the fugitives who currently remain at large in the ICC’s cases are apprehended . . . and that the witnesses who testify and the victims who wish to participate in the proceedings are assured of their safety.” The U.S. uses “an array of tools to advance the causes of apprehension and witness protection.”
Second, “it is crucial that members of the international community continue to reinforce the legal norms and prohibitions that lead to the creation of institutions such as the ICC.” One example is the U.S. establishment of the Atrocities Prevention Board that was discussed in a prior post.
Third, “we must continue to strive to improve our system of international justice. . . . [The ICC needs] to build a solid jurisprudence, navigate challenges that arise in international cooperation, and establish legitimacy . . . as a fair and efficient criminal justice institution that makes prudent decisions in the cases it pursues, and those it declines to pursue.”
Fourth, “we all must continue to recognize that the ICC cannot and must not operate alone. States retain primacy, both legal and moral, in ensuring justice for grave crimes. Justice closer to the victims is always preferable, in a system that can account for local laws and custom, in a familiar language, and in an accessible setting. Even where the ICC does operate, tremendous work will remain to be done at the national level. . . . [The U.S.] looks forward to continuing to collaborate in promoting this crucial work.”[2]
Harold Koh
Legal Advisor Koh said the Court was “an important forum” for advancing U.S. national security and humanitarian interests. It “can help increase stability and thus decrease the need for more costly military interventions in the future.”
Koh reviewed the five stages of the historical development of international criminal justice: (1) International Criminal Justice 1.0: The Nuremberg Trials that worked to establish the principles of legitimacy, professionalism, cooperation, and legality; (2) International Criminal Justice 2.0: The Ad Hoc Tribunals; (3) International Criminal Justice 3.0: The Hybrid Tribunals; (4) International Criminal Justice 4.0: The ICC; and (5) International Criminal Justice 5.0: The Future.
After reviewing the history of U.S. relations with the ICC, Koh discussed four important issues for the Court’s future. First, it needs to continue to develop the practice of positive complementarity so that the ICC is the court of last resort with fewer cases. Second, the ICC established important precedents with its first conviction (Lubanga of the DRC) and establishment of procedures and principles for reparations for victims in that case. Third, the ICC must build up its resources and capacities; it must function in a fair and transparent manner with able and unbiased prosecutors and judges; national judicial systems must be bolstered to reduce the ICC’s burdens; it must improve cooperation with states and enhance the efficiency and effectiveness of its prosecutions; and it should be cautious about moving forward with the amendment on the crime of aggression that was adopted at the Kampala Review Conference.
Koh concluded with more general comments about the future. He said the challenge is “to build the accountability agenda of the past seventy years into a sustained ‘Smart Power Approach’ to international criminal justice that sees accountability as part of a broader approach to diplomacy, development, rule of law, and atrocities prevention.”
New U.S. Statute To Assist ICC. On January 15th, President Obama signed The Department of State Rewards Program Update and Technical Corrections Act of 2012 (S.2318). The President said the new law “will enhance the ability of the U.S. Government to offer monetary rewards for information that leads to the arrest or conviction of foreign nationals accused by international criminal tribunals of atrocity-related crimes, and of individuals involved in transnational organized crime.” The President added, “This powerful new tool can be used to help bring to justice perpetrators of the worst crimes known to human kind. . . . We have made unmistakably clear that the United States is committed to seeing war criminals and other perpetrators of atrocities held accountable for their crimes, and today’s legislation can help us achieve that goal.
The new law declares “the sense of Congress that the rewards program of the Department of State should be expanded in order to … target other individuals indicted by international, hybrid or mixed tribunals for genocide, war crimes, or crimes against humanity.” It then goes on to authorize the State Department to pay rewards for “the transfer to or conviction by an international criminal tribunal … of any foreign national accused of war crimes, crimes against humanity, or genocide, as defined under the statute of such tribunal.”
Two provisions of the law show a continuing wariness about the ICC. One requires that 15 days before announcing a reward for the arrest of a particular foreign national accused of those crimes, the State Department must submit a report to Congress explaining why the arrest would be in the national security interest of the United States. The other declares that the law does not authorized activities precluded under the American Servicemembers’ Protection Act.
On April 3rd this new law was used when the U.S. offered to pay up to $5 million for information leading to the arrest, transfer or conviction of four ICC fugitives: Joseph Kony, Dominic Ongwen and Okot Odhiambo of the Lord’s Resistance Army in Uganda and Sylvestre Mudacumura of the Democratic Republic of the Congo. The names will be broadcast on radio and appear on reward posters printed in the languages of the fugitives’ countries, he said. “The offer of rewards for I.C.C. fugitives will be the biggest step we’ve taken toward engagement and support” for the court, Ambassador Rapp said.
This post will review the current status of the eight situations (all from Africa) currently under investigation by the Office of the Prosecutor (TOP) of the International Criminal Court (ICC) and the 30 individuals that have been charged by the ICC with crimes in those situations.[1]
In July 2004, pursuant to a referral by the government of Uganda, TOP opened an investigation into the situation of the Lord’s Resistance Army (LRA)in Northern Uganda. That has resulted in charges of crimes against humanity and war crimes against five individuals, four of whom remain at large: Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen. The other (Raska Lukwiya) is deceased.
The hunt for Kony and other LRA leaders continues. Uganda has some 2,500 soldiers deployed around the border areas of Central African Republic (CAR) the Democratic Republic of Congo and South Sudan, where Kony and his fighters are thought to spend most of their time. The Ugandan troops are joined by 500 Congolese fighters, 500 South Sudanese and 350 CAR troops, all operating under the auspices of the African Union (AU). They have been assisted by 100 U.S. special forces. These efforts will continue despite the recent coup in the CAR.
On March 18, 2013, TOP issued a statement that LRA members will not be killed or tortured if they surrender to the ICC. All their human rights will be protected and the cases against them will be in accordance with accepted international human rights standards. They will face a fair, impartial and public justice that respects all their rights, including the right to be represented by a lawyer of their choice, and to present evidence in their defense. If convicted they will not be sentenced to death. Therefore, they should hand themselves over and face a fair justice process at the ICC or remain fugitives in full knowledge that military forces from many countries are looking for them, and they may be cornered, captured, and possibly killed or wounded in the process.
In June 2004, pursuant to a referral by the government of the Democratic Republic of the Congo (DRC), TOP opened an investigation into the situation in the country since June 1, 2002. That has resulted in six cases against six individuals.
Thomas Lubanga Dyilo on March 1, 2012, was convicted of war crimes and on July 10, 2012, sentenced to 14 years imprisonment.
On July 8, 2012, the ICC issued its first decision on reparations. It decided that the potential beneficiaries are the direct and indirect victims who suffered harm following the crimes of enlisting, conscripting and using children under the age of 15 in Ituri in the DRC (9/1/02–8/13/03), including family members of direct victims and individuals who intervened to help the victims or to prevent the commission of these crimes. The decision also established the following principles for reparations:
no discrimination as regards age, ethnicity or gender;
reconciling the victims of child recruitment and their families and communities in Ituri;
preserving their dignity and privacy;
taking into account the age of the victims and the sexual violence that they may have suffered; and
the need to rehabilitate the former child soldiers within their communities.
Germain Katangawent on trial (with Mathieu Ngudjolo Chui) on November 24, 2009, on charges of crimes against humanity and war crimes within the meaning of Article 25(3)(a) of the Statute (committing the crimes jointly through another person). On February 7, 2012, evidence in the case was closed and closing arguments were heard in May 2012 by the Trial Chamber.
On November 21, 2012, the Chamber, 2 to 1, issued an order severing Mr. Chui from this case and deciding that the mode of liability of Mr. Katanga might be changed under Regulation 55(2)[2] to Article 25(3)(d) of the Statute (contributing in any other way to the commission of the crimes by a group of persons acting with a common purpose).
This proposed change (after the trial) was appealed by Mr. Katanga, and on March 27, 2013, the Appeals Chamber, 2-1, affirmed the Trial Chamber. It held that the decision was in accordance with Regulation 55(2) and did not violate the defendant’s right to a fair trial. However, it said, the Trial Chamber will have to be vigilant in its further deliberations to ensure that this right will not be infringed by further trial proceedings.
Mathieu Ngudjolo Chui , as just indicated, was tried with Mr. Katanga from November 24, 2009 through May 23, 2012 on charges of crimes against humanity and war crimes within the meaning of Article 25(3)(a) of the Statute (committing the crimes jointly through another person), but on November 21, 2012, Mr. Chui’s charges were severed.
On December 18, 2012, the Trial Chamber issued its unanimous verdict acquitting Mr. Chui of all charges because it had not been proven beyond reasonable doubt that he was the commander of the Lendu combatants from Bedu-Ezekere during the attack against the Bogoro village on 24 February 2003. On December 21, 2012, Mr. Chui was released from detention pursuant to an order by the Appeals Chamber.
The Office of the Prosecutor has appealed that verdict.
Bosco Ntaganda has been charged with three counts of crimes against humanity and seven counts of war crimes.
On March 22, 2013, he voluntarily surrendered himself to the U.S. Embassy in Rwanda and asked to be turned over to the ICC. His decision prompted speculation as to why he did so. One theory says he was threatened by member of his own rebel group and wanted to save his own life. In any event, soon thereafter he made his initial appearance before the Court and said he was not guilty. The date for his confirmation of charges hearing was set for September 23, 2013.
Callixte Mbarushimana was charged with five counts of crimes against humanity and eight counts of war crimes, but on December 16, 2011, the Pre-Trial Chamber refused to confirm the charges, and on December 23, 2011, he was released from the Court’s custody.
Sylvestre Mudacumura on July 13, 2012, was the subject of the Pre-Trial Chamber’s arrest warrant for allegedly committing nine counts of war crimes in the DRC, including attacking civilians, murder, mutilation, cruel treatment, rape, torture, destruction of property, pillaging and outrages against personal dignity. He is at large.
On May 22, 2007, pursuant to a referral by the government of the Central African Republic (CAR), TOP opened an investigation into alleged crimes, in 2002 and 2003, in that country. In which civilians were killed and raped; and homes and stores were looted in the context of an armed conflict between the government and rebel forces.
Jean-Pierre Bemba Gombo is the only case. He is charged as a military commander, with two counts of crimes against humanity: (murder and rape) and three counts of war crimes (murder, rape and pillaging). His trial started on November 25, 2010, and is not finished.
On June 6, 2005, pursuant to a referral by the U.N. Security Council, TOP opened an investigation into the situation in Darfur, Sudan since July 1, 2002.
That has resulted in six cases involving seven individuals, the following four of whom are still at large: (i) Ahmad Muhammad Harun (20 counts of crimes against humanity and 22 counts of war crimes); (ii) Ali Muhammad Ali Abd-Al-Rahman (22 counts of crimes against humanity and 28 counts of war crimes); (iii) Omar Hassan Ahmad Al Bashir, the President of Sudan (5 counts of crimes against humanity, 2 counts of war crimes and 3 counts of genocide); and (iv) Abdel Raheem Muhammad Hussein (7 counts of crimes against humanity and 6 counts of war crimes).
Bahar Idriss Abu Garda was charged with war crimes, but in 2010, the Pre-Trial Chamber refused to confirm the charges, and rejected the Prosecutor’s application to appeal.
Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus are charged with co-commission of three war crimes. Their trial is scheduled to start on May 5, 2014.
In the latest (December 2012) semi-annual report to the U.N. Security Council on this situation and cases,[3] the Chief Prosecutor said that her office would consider whether further investigations and additional arrest warrants were needed to address recent violations, including reports of thwarting humanitarian aid deliveries, attacks on African Union-United Nations Hybrid Operation in Darfur (UNAMID) peacekeepers and bombardments and attacks on civilian populations.
The Chief Prosecutor also told the Council, “The question that remains to be answered is how many more civilians must be killed, injured and displaced for this Council to be spurred into doing its part. There are no words to properly express the frustration of Darfur’s victims, which we share, about the lack of any meaningful progress towards arresting those indicted by the Courts.”
In response, Sudan’s representative told the Security Council that the Prosecutor’s report was flawed, saying it contained unsubstantiated allegations, and contradicted UNAMID reports. The report’s allegations of gender violence, for instance, did not provide sources, and it mistook tribal clashes for fighting between militias. Also, reported attacks on peacekeepers had in fact been committed by bandits now being pursued by Sudanese authorities. He said the Court had become a tool for “blackmail” and for violating the sovereignty of small States and was being exploited by certain political interests.
Among the other statements at the Council meeting, a U.S. diplomat said mounting violence was a grave concern, including targeted civilian attacks and denying UNAMID access to affected areas. Since UNAMID’s initial deployment in 2007, 43 peacekeepers had been killed, in attacks that could be prosecuted as war crimes. The Council should condemn any and all attacks on mission personnel. Reversing the cycle of violence required accountability for the perpetrators, he said, expressing dismay that the Sudanese Government was not cooperating with the Court, despite its obligation to do so fully. Continued impunity for crimes committed in Darfur fomented instability and sent a dangerous message that there were no consequences to attacking civilians. Welcoming the willingness of States to consider creative approaches and new tools to assist the Court, he also embraced further discussions on resolutions concerning Council referrals to the Court. [4]
On March 31, 2010, the Pre-Trial Chamber, 2-1, authorized TOP to proceed with an investigation that it had proposed into the situation in Kenya between June 1, 2005 and November 26, 2009.
Uhuru Muigai Kenyatta is charged as an indirect co-perpetrator of crimes against humanity (murder, deportation or forcible transfer, rape, persecution and other inhumane acts. The charges stem from his alleged role in funding and organizing ethnic violence leading to the death of an estimated 1,200 people after the 2007 presidential election. His trial is scheduled to start on July 9, 2013.
In the meantime, on March 3, 2013, Kenyatta, who employed anti-ICC propaganda in his presidential election campaign, was narrowly elected President of Kenya, and on March 30th the country’s Supreme Court unanimously rejected a challenge to the election from his main electoral opponent. Kenyatta’s election creates an “awkward” situation, as the New York Times said, for the U.S. and other countries who need good diplomatic relations with Kenya.
William Samoei Ruto was charged with being an indirect co-perpetrator of crimes against humanity. His trial is scheduled to begin on May 28, 2013.
Joshua Arap Sang was charged with having contributed to crimes against humanity. His trial is scheduled to begin on May 28, 2013.
Henry Kiprono Kosgey was charged as an indirect co-perpetrator of crimes against humanity, but the Pre-Trial Chamber declined to confirm the charges.
Mohammed Hussein Ali was charged with crimes against humanity, but in 2012, the Pre-Trial Chamber refused to confirm the charges.
Francis Kirimi Muthaura was charged as an indirect co-perpetrator of crimes against humanity, and the re-Trial Chamber in January 2012 confirmed some of the charges. In March 2013, however, TOP filed notice to withdraw the charges because several people who may have provided important evidence regarding his actions, have died, while others are too afraid to testify for the Prosecution; the Government of Kenya failed to provide TOP with important evidence; and the key witness against him had recanted a crucial part of his evidence and had admitted he had accepted bribes.
On February 26, 2011, the U.N. Security Council referred the situation in Libya since February 15, 2011 to the Court. That has resulted in TOP’s charges against three individuals, one of whom died (Muammar Gaddafi) resulting in the dismissal of his case.
The other two (Saif Al-Islam Gaddafi and Abdullah Al-Senussi) are in the custody of the Libyan Provisional Authority and have not been turned over to the Court despite negotiations to that effect.
In October 2012, Libya asked the ICC to abandon its claims against the two men because it said Libya can give them fair trials in Tripoli. In early 2013, Libyan officials told the ICC that the two men would be put on trial in Libya in May this year and would not face summary trial and execution.
In the latest (November 2012) semi-annual report to the U.N. Security Council on this situation and cases,[5] the Chief Prosecutor said both Saif Al-Islam Qadhafi and Abdullah Al-Senussi had been arrested and detained in Libya, and that the Libyan authorities had challenged the admissibility of the ICC’s case against Mr. Qadhafi and possibly of the case against Mr. Al-Senussi. She said the ICC’s Pre-Trail Chamber would decide the merits of the challenge as to whether the case should be heard at the Court or in Libya, and should the challenge ultimately succeed, TOP would monitor those proceedings and cooperate with Libya, to the extent of the mandate.Emphasizing the pressing need for complementary and mutually supportive approaches to address accountability, she encouraged international support and assistance to enhance Libya’s capacity to deal with past crimes and to promote the rule of law.
A Libyan representative at the Council meeting said his Government had set out its plans for stability, reconciliation and comprehensive justice for crimes that had been committed in his country and that its investigation was already at an advanced stage in some of those cases although the Qadhafi trial had been postponed in order to allow for the most thorough possible investigation. Libya, he continued, has been cooperating with the ICC and was now awaiting the decision on the admissibility challenge in the Qadhafi case and a forthcoming similar challenge in the Al-Senussi case. He reiterated his country’s pledge to carry out all procedures in compliance with international law.
A U.S. diplomat at the Security Council urged the Libyan Government to continue its cooperation with the Court. It was an important moment for both Libya and the Court as they worked together, under their respective roles, in ensuring peace and accountability. It was critical for Libya to ensure the safety of ICC personnel on visits to the country. She added that the U.S. had endeavored to cooperate with the ICC in its efforts regarding Libya, consistent with U.S. law and policy. Impunity for all serious crimes in Libya, including gender crimes, must be avoided, and victims should be assisted. The U.S. would continue to work with the international community to assist Libyan efforts to reform its justice sector and advance human rights in the country.
On October 3, 2001, the Court’s Pre-Trial Chamber granted TOP request to commence an investigation into the situation in the Ivory Coast since November 28, 2010, and in February 2012 the Chamber expanded the investigation to cover the period September 19. 2002 through November 28, 2010.
Laurent Gbagbo, the former president of the country, has been charged with four counts of crimes against humanity. He was surrendered to the Court in November 2011, and his confirmation of charges hearing was held in February 2013.
Simone Gbagbo, the wife of Laurent Gbagbo, has been charged as an indirect co-perpetrator with four counts of crimes against humanity. She has not been turned over to the Court.
On July 13, 2012, the government of Mali referred the situation in that country since January 2012 to the ICC, which has assigned it to the Pre-Trial Chamber.
In January 2012 a rebellion began in Northern Mali, led by the National Movement for the Liberation of Azawad (MNLA). In March 2012, military officer Amadou Sanogo seized power in the country in a coup d’etat, citing the president’s failure to eliminate the rebellion. The MNLA quickly took control of the north, declaring independence as Azawad. However, Islamist groups that had helped the MNLA defeat the government, turned on the rebel group and took control of the North with the goal of implementing Sharia Law in Mali.
On January 11, 2013, the French Armed Forces intervened at the request of Sanogo’s government. On January 30th, the coordinated advance of the French and Malian troops claimed to have retaken the last remaining Islamist stronghold.
In the midst of these military engagements, on January 16, 2013, TOP announced that it formally had opened an investigation into the Situation in Mali since January of 2012. After thorough analysis it said it had found that evidence, admissibility, gravity of potential cases, and interest of justice all support the requirements to open a formal investigation into war crimes allegedly committed in Mali. Crimes alleged to have happened include murder; mutilation, cruel treatment and torture; intentionally directing attacks against protected objects; the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court; pillaging; and rape. The ICC will move to investigate these alleged crimes and bring charges against individuals “who bear the greatest criminal responsibility for the most serious crimes committed.
In late January 2013, TOP warned Malian authorities to put an immediate stop to the alleged abuses and, on the basis of the principle of complementarity, to investigate and prosecute those responsible for the alleged crimes. TOP reminded all parties to the on-going conflict in Mali that it has jurisdiction over all serious crimes committed within the territory of Mali, from January 2012 onwards. All those alleged to be responsible for serious crimes in Mali must be held accountable.
Conclusion
The following summarizes the status of those charged with crimes by the Court as it nears its 11th anniversary on July 1, 2013:
Status
Number
Deceased
2
At large or not in Court custody
12
Pre-Trial: charges not confirmed
6
Pre-Trial: pending
1
Trials scheduled to start by 12/31/14
5
At trial
1
Tried and convicted
1
Tried and status in question
1
Tried and acquitted
1
TOTAL
30
[1] There have been many prior posts about the ICC.
[2]Regulation 55, which is titled “Authority of the Chamber to modify the legal characterization of facts,” says in part (2),”If, at any time during the trial, it appears to the Chamber that the legalcharacterisation of facts may be subject to change, the Chamber shall give noticeto the participants of such a possibility and having heard the evidence, shall, atan appropriate stage of the proceedings, give the participants the opportunity tomake oral or written submissions. The Chamber may suspend the hearing toensure that the participants have adequate time and facilities for effectivepreparation or, if necessary, it may order a hearing to consider all mattersrelevant to the proposed change.” Part (3) goes on to say, “For the purposes of sub-regulation 2, the Chamber shall, in particular,ensure that the accused shall:(a) Have adequate time and facilities for the effective preparation of his or herdefence [sic] in accordance with article 67, paragraph 1 (b); and (b) If necessary, be given the opportunity to examine again, or have examined again, a previous witness, to call a new witness or to present other evidence admissible under the Statute in accordance with article 67, paragraph 1 (e).”
[3] A prior post discussed the June 2012 ICC report to the Security Council on the Darfur/Sudan referral.
[4] The U.S. statement regarding Sudan/Darfur is available online.
[5] A prior post discussed the May 2012 ICC report to the Security Council on the Libyan referral.
We recently have reviewed the taking of office of five new judges of the International Criminal Court (ICC) and the Court’s first conviction in the case of Thomas Lubanga Diyalo from the Democratic Republic of the Congo. Now we look at some other recent ICC developments.
Central African Republic. The only case from the Central African Republic involves one defendant, Jean-Pierre Bemba Gombo, who is now on trial.
Darfur/Sudan. There are five cases involving seven defendants. Two are in ICC custody at The Hague and await trial. One had the charges dismissed. The other four, including Sudanese President Bashir, are at large.
Another of the at-large defendants is Abdel Raheem Muhammad, whose arrest warrant was just issued on March 1, 2012, for 41 counts of crimes against humanity and war crimes allegedly committed in the context of the situation in Darfur (Sudan). Mr. Hussein is currently Minister of National Defense of the Sudanese Government and former Minister of the Interior and former Sudanese President’s Special Representative in Darfur.
Democratic Republic of the Congo. There are four cases involving five defendants. One, Mr. Lubanga, was recently convicted. A case involving two other defendants is now on trial. The charges against another defendant were not confirmed by the Pre-Trial Chamber while the fifth defendant is at large.
After the conviction of Mr. Lubanga, the ICC Prosecutor said he plans to demand that DRC President Joseph Kabila hand over the defendant still at large. He is Bosco Ntaganda, who was promoted to DRC army general after being indicted with Lubanga by the ICC and who now faces new charges of mass rape and murder.
Ivory Coast (Côte d’Ivoire). There is only one case involving one defendant, Laurent Gbagbo (the former President of the country) for whom the hearing on the confirmation of charges is scheduled to start on 18 June 2012. He is in ICC custody at The Hague.
On February 22, 2012, the Pre-Trial Chamber decided to expand its authorization for the investigation in Côte d’Ivoire to include crimes within the jurisdiction of the Court allegedly committed between September 19, 2002 and November 28, 2010. (The prior authorization only covered alleged crimes committed since November 28, 2010.)
The Chamber considered that the violent events in Côte d’Ivoire in this period (including the events since 28 November 2010) are to be treated as a single situation, in which an ongoing crisis involving a prolonged political dispute and power-struggle culminated in the events in relation to which the Chamber earlier authorized an investigation. Concentrating on the most significant of the samples of incidents, the Chamber concluded that there is reasonable basis to believe that, in the course of these events, acts of murder and rape that could amount to war crimes or crimes against humanity were committed.
In the country lawlessness and violence continues, and an U.N. agency recently determined that its security forces that have been accused of killings, arbitrary arrests and other human rights violations are acting alone and not under government orders.
Kenya. There are two Kenyan cases involving six defendants. On January 23, 2012, the Pre-Trial Chamber confirmed the charges against four of the defendants and committed them to trial while declining to confirm the charges against the other two.
The reaction to this decision in Kenya is reviewed elsewhere.
Libya. There is one case involving three defendants. One defendant, Muammar Mohammed Abu Minyar Gaddafi, is deceased, and his case has been terminated. The other two- Saif Al-Islam Gaddafi and Abdullah Al-Senussi–are charged with crimes against humanity (murder and persecution) allegedly committed across Libya from February 15, 2011 until at least 28 February 2011, through the State apparatus and Security Forces.
Al-Islam Gaddafi is in detention in Libya, which has been resisting ICC demands for his being surrendered to the Court. Al-Senussi recently was captured in Mauritania, and Libya is pressing that country to turn him over to Libyan authorities, rather than the ICC. The legal issue at the heart of this dispute over where these two men will be tried is whether Libya has a functioning judicial system that can provide a due-process criminal proceeding.
Uganda. There isone case involving four defendant leaders of the Lord’s Resistance Army (LRA), including Joseph Kony. All four are at large.
The major recent development regarding the ICC’s case has happened outside the legal process. Earlier this month a 30-minute YouTube video “Kony 2012” portrayed Mr. Kony’s involvement with child soldiers and called for his arrest and surrender to the ICC for trial. This video became a world-wide phenomenon (“it went viral”) and the subject of much controversy.
This increased attention to Kony has caused the Ugandan military to intensify its efforts to find Kony and other LRA leaders.
In the meantime, the U.S., although not a member of the ICC, has reiterated its commitment of military resources to locate the LRA leaders. The Department of State recently declared that the U.S. has a “comprehensive, multi-year strategy [that] seeks to help the Governments of Uganda, CAR, the DRC, and South Sudan as well as the African Union and United Nations to mitigate and end the threat posed to civilians and regional stability by the LRA. The strategy outlines four key objectives for U.S. support: (1) the increased protection of civilians, (2) the apprehension or removal of Joseph Kony and senior LRA commanders from the battlefield, (3) the promotion of defections and support of disarmament, demobilization, and reintegration of remaining LRA fighters, and (4) the provision of continued humanitarian relief to affected communities.”
Conclusion
As evident from the above, all of the ICC’s current investigations and cases come from Africa, which has produced tension between the Court and the continent’s leaders. Following the recent elections of an African (Fatou Bensouda) as the Court’s new Prosecutor and another African (Chile Eboe Osuji) as one of its new judges, nearly 36 NGOs from 19 African countries recently sent a joint letter to the foreign ministers of the African countries that are parties to the ICC’s Rome Statute urging them to seek to improve African relations with the ICC. The letter’s specific recommendations to this end included the following:
more meetings and “exchange of views” between officials of the African Union and the ICC;
establishment by the African Union of an ICC liaison office in Addis Ababa, Ethiopia;
fulfillment by states parties of their obligations under the ICC treaty to implement warrants and decisions of the court; and
improvement of national justice systems so that they might pursue persons accused of the core crimes that the ICC now prosecutes – genocide, crimes against humanity, and war crimes – domestically, as envisaged by the ICC Statute’s complementarity principle.
Recent developments in the ICC’s Libyan investigation and cases have been examined.[1] There also have been interesting developments in four of the other situations under investigation by the ICC: the Democratic Republic of Congo (DRC or Congo), Uganda, Darfur (Sudan), and the Ivory Coast.
Mrs. Fatou Bensouda
Congo. The evidence and arguments in the ICC’s first case to go to trial are over, and the decision of the Trial Chamber is expected early in 2012.[2] The ICC’s Deputy Prosecutor, Mrs. Fatou Bensouda, recently reflected on the lessons of this case for the Office of the Prosecutor (OTP).[3]
Foremost was implementation of the prosecution’s conceded obligation to disclose to the defense (a) incriminating evidence to be used by the prosecution; (b) evidence that is potentially exonerating or may affect the credibility of the prosecution’s evidence; and (c) evidence that is material to the preparation of the defense. Complications arose in this case because of the prosecution’s countervailing duty of confidentiality towards certain witnesses, and the Appeals Chamber decided that the Court had to respect such confidentiality agreements. Thereafter protective procedures were developed to provide such information to the defense despite such agreements.
Contrary to the practice of the ad hoc international criminal tribunals and U.S. courts, the ICC has held that the parties and counsel cannot meet with their witnesses in advance to discuss their anticipated testimony. Thus, what is referred to internationally as “witness proofing” is prohibited.
Some witnesses, especially former child soldiers, had been admitted into the Court’s witness protection program, and the Trial Chamber allowed them to testify with voice and face distortion and pseudonyms to protect their identity from the public while providing that information to the defense.[4]
Some other witnesses provided testimony via video link from the DRC without any technical problems.
The prosecution uses confidential intermediaries in the field, in the DRC in this case, to facilitate contact with potential witnesses and other sources of information. In this case, the defense alleged that some intermediaries were suggesting false testimony be given, and problems arose over the Trial Chamber’s order for disclosure of the identity of the intermediaries before protection had been provided to them.
The DRC’s presidential and parliamentary elections will be on November 28th, and reports of pre-election violence prompted the ICC’s OTP to issue a public statement that it was closely monitoring the situation and would investigate and prosecute any crimes within the Court’s jurisdiction that were committed.[5]
Joseph KonyPresident Al Bashir
Uganda. The ICC has issued arrest warrants for Joseph Kony and three other top members of the Lord’s Resistance Army (LRA), but they all are at large.[6] In October President Obama ordered the deployment of 100 U.S. armed military advisors to central Africa to assist local forces in combating the LRA. The President did so pursuant to the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act. If the U.S. forces assisted in the arrest of any of these top LRA leaders, they would be turned over to the ICC.[7]
Sudan (Darfur). The ICC has issued an arrest warrant for Sudanese President Omar Hassan Ahmed Al Bashir, who is the current head of state and who is still at large.[8] Recently Bashir was in Malawi and was not arrested even though Malawi as an ICC State Party had an obligation to do so. As a result, the ICC Pre-Trial Chamber requested Malawi to submit observations on its failure to arrest Bashir.[9]
Ivory Coast. In early October the ICC’s Pre-Trial Chamber authorized the Prosecutor to conduct an investigation of the situation in the Ivory Coast.[10] Later that same month the Prosecutor visited the country to meet with government officials, members of the Opposition, victims and the country’s Truth, Dialogue and Reconciliation Commission.[11]
[1] Post: International Criminal Court: Recent Developments in the ICC’s Libyan Investigation and Cases (Nov. 16, 2011).
[2] Post: International Criminal Court: ICC’s First Trial To End This Week (Aug. 24, 2011).
[3] Bensouda, Update on Trials and the Closing of the First Case (Oct. 5, 2011), www2.icc-cpi.int/nr/exeres/2386f5cb-b2a5-45dc-b66f-17e762f77b1f.htm.
[4] Post: International Criminal Court: Protection of Witnesses (Aug. 19, 2001).
[5] ICC, ICC Prosecutor: we are closely monitoring the situation in the Democratic Republic of the Congo (Nov. 11, 2011).
[6] Post: International Criminal Court’s Investigations and Prosecutions (April 28, 2011); ICC, Situations and Cases, www2.icc-cpi.int/Menus/ICC/Situations+and+Cases.
[8] Post: International Criminal Court’s Investigations and Prosecutions (April 28, 2011); Post: International Criminal Court: ICC Prosecutor Updates the U.N. Security Council on Sudan (Darfur) (June 17, 2011); International Criminal Justice: Libya, Sudan, Rwanda and Serbia Developments (July 4, 2011).
[9] ICC Press Release, Pre-Trial Chamber I requests observations from Malawi on the enforcement of warrants of arrest against Omar Al Bashir (Oct. 19, 2011).
[10] Post: International Criminal Court: Prosecutor Seeks To Open Investigation of Ivory Coast (May 23, 2011); Post: International Criminal Court: Investigation of Ivory Coast Situation Is Authorized (Oct. 3, 2011).
[11] ICC, Statement by ICC Prosecutor Luis Moreno-Ocampo on official visit to Cote d’Ivoire, October 15-16 (Oct. 14, 2011).
On October 3, 2011, the Pre-Trial Chamber of the International Criminal Court (ICC) authorized the Prosecutor to conduct an investigation of the situation in the Ivory Coast (Cote d’Ivorie) for possible crimes against humanity and war crimes within the Court’s jurisdiction since November 28, 2010.[1]
Ivory Coast has been in turmoil since a coup in 1999 and a flawed 2000 election in which Laurent Gbagbo was elected president for a five-year term. Gbagbo, however, failed to hold an election in 2005 and was still in office when an election was held in November 2010. He was defeated in that election by Alassane Outtara, but Gbagbo refused to turn over power to Ouattara. Thereafter there was armed conflict between supporters of the two men that is the focus of the now authorized ICC investigation. In that conflict approximately 3,000 people were killed, and 500,000 people fled into neighboring countries. In April 2011 Gbagbo was forcibly removed from office and arrested with the help of French and U.N. military forces (In May Ouattara was formally inaugurated as president.) This August, Gbagbo and his wife were charged with looting, armed robbery and embezzlement by the country’s prosecutor.[2]
The Ivory Coast situation is an excellent illustration of the checks and balances within the ICC. One of the ways an investigation can be started by the ICC Prosecutor is on his own initiative (proprio motu), but that can happen if and only if a three-judge Pre-Trial Chamber authorizes the investigation, which is what just happened with the Ivory Coast.[3]
Such authorization is not automatic and cannot be presumed.
The Pre-Trial Chamber’s decision to authorize the Ivory Coast investigation is an 86-page careful analysis of the many legal conditions that must be satisfied for such an authorization. It concludes with a statement that one of the three judges will be filing a separate and partially dissenting opinion.[4]
The first condition was ICC jurisdiction over the Ivory Coast. It is not a State Party to the Court’s Rome Statute, but in April 2003 it submitted a declaration to the Court that the country accepted ICC jurisdiction for crimes on its territory since September 19, 2002 and for an unspecified period of time thereafter. The validity of this declaration was confirmed in a December 2010 letter from President-elect Ouattara, who pledged full cooperation with the Court in particular for crimes after March 2004. In addition, in May 2011 President Ouattara sent a letter to the Court in which he said that he believed crimes within the Court’s jurisdiction had been committed since the elections of 2010 and requested the ICC’s assistance in prosecuting perpetrators of such crimes. Therefore, the Pre-Trial Chamber concluded that the Court had jurisdiction over the situation in the Ivory Coast.[5]
The Pre-Trial Chamber then considered the materials regarding possible crimes committed by the pro-Gbagbo forces and concluded that there was reason to believe that they had committed crimes against humanity by murder, rape, arbitrary arrest and detention, enforced disappearances and torture and other inhumane acts.[6] The pro-Gbagbo forces also had been shown possibly to have committed war crimes in an armed conflict not of an international character by murders, intentional attacks on civilian populations and U.N. personnel, rape and sexual violence.[7]
The Pre-Trial Chamber also considered whether pro-Ouattara forces had committed similar crimes and concluded that there was reason to believe that they had. Their possible crimes against humanity were murder, rape and imprisonment and deprivation of liberty. Their possible war crimes were murder, rape, pillage, torture and other cruel treatment.[8]
The Pre-Trial Chamber emphasized that the authorization included continuing crimes after the Prosecutor’s application to the Chamber on June 23, 2011.[9] The Prosecutor also was asked in one month to submit additional materials for possible crimes in the Ivory Coast from 2002 (when the ICC commenced operations) through 2010.[10]
Last month President Ouattara appointed 11 people to the country’s new Commission on Dialogue, Truth and Reconciliation. Although modeled after South Africa’s Truth and Reconciliation Commission, it is unclear if it will be issuing amnesties and pardons.[11]
This Commission’s goals might be seen as conflicting with the ICC’s investigation and possible prosecution of people for committing crimes against humanity and war crimes in the country, but immediately after the Pre-Trial Chamber’s authorization of the ICC investigation, its Prosecutor stated that the investigation “should be part of national and international efforts to prevent future crimes in [the country” and that the Commission “would be a central piece of such efforts. National authorities could define other activities to help the victims, ensure peaceful coexistence and prevent future violence. Promoting justice and reconciliation . . . must be our common endeavour.”[12]
This is the Court’s seventh investigation, all from Africa. Three of the others are by submissions from States Parties: Uganda, Democratic Republic of Congo and the Central African Republic. Two are from submissions from the U.N. Security Council: Darfur (Sudan) and Libya. The other, Kenya, was another Pre-Trial Chamber approval of an investigation initiated by the Prosecutor.[13]
[1] Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situtation in the Republic of Cote d’Ivorie, (ICC Pre-Trial Ch. Oct. 3, 2011); ICC, Press Release: ICC Pre-Trial Chamber III authorizes the Prosecutor to launch an investigation in Cote d’Ivorie (Oct. 3, 2011); Assoc. Press, Int’l Court IJs Ivory Coast Violence Probe, N.Y. Times (Oct. 3, 2011); Post: International Criminal Court: Prosecutor Seeks To Open Investigation of Ivory Coast (May 23, 2011).
[2]Id.; Nossiter, Sayare & Bukefsky, Leader’s Arrest in Ivory Coast Ends Standoff, N.Y. Times (April 11, 2011); BBC, Ivory Coast reconciliation commission launched, BBC News (Sept. 6, 2011).
[3] Post: International Criminal Court: Introduction (April 28, 2011); Post: International Criminal Court: Prosecutor Seeks To Open Investigation of Ivory Coast (May 23, 2011).
[4] Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situtation in the Republic of Cote d’Ivorie, (ICC Pre-Trial Ch. Oct. 3, 2011).
[11] BBC, Ivory Coast reconciliation commission launched, BBC News (Sept. 6, 2011);BBC, Ivory Coast gets truth and reconciliation commission, BBC News (Sept. 28, 2001);Ivory Coast launches reconciliation panel,al Jazeera.net (Sept. 28, 2011).
[12] ICC, Press Release: ICC Prosecutor: This decision ensures justice for victims in Cote d’Ivoire. I will conduct effective, independent and impartial investigations, (Oct. 3, 2011).
[13] Post: International Criminal Court: Investigations and Prosecutions (April 28, 2011).
All of the ICC’s initial six investigations come from Africa.
Uganda, Democratic Republic of Congo and Central African Republic. Three of the investigations arise from submissions to the Court by three of its African States Parties–Uganda, the Democratic Republic of the Congo and the Central African Republic. These ICC investigations have led to the issuance of 10 arrest warrants. One of the subjects from Uganda died of natural causes. Five of the subjects of these warrants remain at large. Three of the Congolese subjects (Lubanga, Katanga and Chui) are now on trial at the ICC, with the closing arguments in the ICC’s first trial (Lubanga) scheduled for this coming August. In addition, the trial of Jean-Pierre Bemba for actions in the Central African Republic started this past November.[1]
Kenya. Another investigation relates to Kenya. On November 26, 2009, the Prosecutor on his own initiative asked the Pre-Trial Chamber for permission to open an investigation into post-election violence in Kenya in 2007-2008 as possible crimes against humanity. On March 31, 2010, that Chamber approved that application. A year later–March 8, 2011, the Pre-Trial Chamber authorized the issuance of summonses to six individuals.[2]
Darfur (Sudan) and Libya. The last two investigations –Darfur (Sudan) and Libya– arise from submissions to the Court by the U.N. Security Council under Article 13(b) of the Rome Statute and Chapter VII of the U.N. Charter. (The latter gives the Council responsibility for the maintenance of “international peace and security.”)
In the Darfur (Sudan) situation, the Court has issued seven arrest warrants against six persons. One of the subjects (Bahr Idriss Abu Garda) appeared voluntarily at the Court and was in pre-trial proceedings, but on February 8, 2010, the Pre-Trial Chamber declined to confirm the charges against him, thus ending his case subject to reopening by the Prosecutor if there is additional evidence to support the charges. Two others (both Darfur rebel commanders) voluntarily surrendered themselves to the ICC, and in March 2011, the Pre-Trial Chamber confirmed the charges against them and committed them to trial. Three others remain at large, and one of them (Sudanese President Omar Hassan Ahmed Al Bashir) is the current head of state.[3]
As the Security Council resolution on Darfur itself noted, the Council under Article 16 of the Rome Statute has the power to stop any “investigation or prosecution” by the ICC for a period of 12 months after the Council adopts a resolution to that effect under Chapter VII of the U.N. Charter and to renew such a resolution ad infinitum. Yet in the over five years after its referral of the Darfur situation to the Court, the Council has not chosen to exercise this power after being kept advised of developments by the Prosecutor’s personal biannual reports to the Council.[4] This refusal to defer the prosecution of President Bashir is despite requests to do so from African and Arab states.
The last of the six ICC investigations relates to the current situation in Libya. On February 26, 2011, the U.N. Security Council adopted Resolution 1970 that, among other things, referred the Libyan situation since February 15, 2011, to the ICC’s Prosecutor, directed the Libyan authorities to cooperate fully with the Court and Prosecutor and invited the Prosecutor to make periodic reports about his actions in this matter to the Council. The resolution also stated that “nationals, current or former officials or personnel from a State outside [Libya], which is not a party to the Rome Statute . . . shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in [Libya] established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State.”[5]
Two days later (February 28th) the Prosecutor stated that he had to decide whether to open an investigation regarding Libya and that he was collecting information to determine whether the necessary conditions for the Court’s jurisdiction were satisfied. [6] Another four days passed, and the Prosecutor on March 3rd announced that he was opening such an investigation.[7]
On May 4th the Prosecutor will report to the Security Council on the status of his Libyan investigation, including a possible request to the Pre-Trial Chamber to issue arrest warrants against those who appear to bear the greatest responsibility for crimes in Libya.
Preliminary examinations. In addition to these six investigations, the Office of the Prosecutor has conducted or currently is conducting preliminary examinations or analyses of situations in a number of other countries to determine if requests to the Pre-Trial Chamber should be made to commence investigations. These countries include Afghanistan, Chad, Colombia, Cote d’Ivorie, Georgia, Guinea, (Gaza) Palestine, Honduras and Nigeria. With respect to Afghanistan, which is a State Party to the Rome Statute, the Prosecutor has said that his office was looking into accusations of war crimes and crimes against humanity by the Taliban and by the U.S. and its allies.[8]
The Prosecutor also has declined to commence certain investigations that had been suggested by outsiders, and under Article 15(6) of the Statute the Prosecutor publicly has stated the reasons for these declinations. Two such instances are Iraq and Venezuela.
The ICC is well on the way to establishing itself as an important actor in the interactive global struggle against impunity for the worst violators of international human rights.
[4]See AMICC, ICC Prosecutor Reports to the United Nations, http://www.amicc.org/icc_activities.html#unreports. These reports include discussions of the Prosecutor’s efforts (a) to determine whether Sudan has capable domestic institutions and procedures to handle the crimes in question and (b) to address whether the “interests of justice” call for continuation or termination of the investigations.
